Dred Scot? Earth to Bush, come in Bush.

[Jimmy Higgins]

Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

This is funny for a couple reasons.

1) Dred Scot was 150 years ago... not years ago like say... Roe v Wade.

2) Dred Scot was actually following the Constitution. The Constitution did allow for slavery to exist... it was a state issue. It wasn't until after the Civil War that slavery was abolished. So if Bush for or against a literal interpretation of the Constitution?

3) Why in the world bring up Dred Scot? Is that the best he has? Is this what he thinks will make us sleep better at night? I certainly hope this wasn't a Freudian Slip of things to come.

You thought the Patriot Act was bad... well, we just brought back slavery!

I think Bush should lose merely on his mentioning of Dred Scot. I mean, what was he thinking?

[Eyeheart Pumpkin]

That was one of the moments where I could really see his composure slipping. He was falling over his words in that bit. I was just waiting for him to say, "Won't get fooled again!"

As an aside, I wonder if he thinks Dred Scot was a member of The Who?

[$cirisme]

Err, are you so dense as to not get the reference to abortion and the Constitution? Both Row v Wade and the Scot Dred case were ruled on the basis of due process.

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

--Majority Opinion, Roe vs Wade

[brett]

This is funny for a couple reasons.

1) Dred Scot was 150 years ago... not years ago like say... Roe v Wade.

2) Dred Scot was actually following the Constitution. The Constitution did allow for slavery to exist... it was a state issue. It wasn't until after the Civil War that slavery was abolished. So if Bush for or against a literal interpretation of the Constitution?

3) Why in the world bring up Dred Scot? Is that the best he has? Is this what he thinks will make us sleep better at night? I certainly hope this wasn't a Freudian Slip of things to come.

You thought the Patriot Act was bad... well, we just brought back slavery!

I think Bush should lose merely on his mentioning of Dred Scot. I mean, what was he thinking?

I think I know what Bush was getting at. Dred Scot is a favorite analogy for pro-life advocates. Bush botched this one, but basically the point is, state's rights should never triumph over the basic human rights (God given) of life and liberty. I’m pretty sure that’s what the Pres. was getting at because the context was judges. It’s a simple argument really. Pro-choicers are so concerned about the mother’s rights they completely ignore the baby's basic human right of life. Likewise, long ago some were so concerned about states rights they completely ignored the individual’s basic right to liberty. Those were dems, btw. How ironic.

[Captain Ochre]

I think I know what Bush was getting at. Dred Scot is a favorite analogy for pro-life advocates. Bush botched this one, but basically the point is, state's rights should never triumph over the basic human rights (God given) of life and liberty. I’m pretty sure that’s what the Pres. was getting at because the context was judges. It’s a simple argument really. Pro-choicers are so concerned about the mother’s rights they completely ignore the baby's basic human right of life. Likewise, long ago some were so concerned about states rights they completely ignored the individual’s basic right to liberty. Those were dems, btw. How ironic.

There's nothing wrong with the example, actually. Constructionism takes into account the context of the Constitution in order to interpret. Yes, the DoI isn't the Constitution, but the preservation of unalienable rights is the foundation of our Constitutional law.

I wonder if our liberal friends even noticed that Kerry affirmed that the Constitution should be interpreted according to the law?
If Bush should be disqualified for mentioning Dred Scot, then Kerry should be disqualified for explaining the judicial role of interpretation exactly backwards.


So, do we pick Nader, or Badnarik?

[Jimmy Higgins]

Err, are you so dense as to not get the reference to abortion and the Constitution? Both Row v Wade and the Scot Dred case were ruled on the basis of due process.

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

--Majority Opinion, Roe vs Wade

I think I know what Bush was getting at. Dred Scot is a favorite analogy for pro-life advocates. Bush botched this one, but basically the point is, state's rights should never triumph over the basic human rights (God given) of life and liberty. I’m pretty sure that’s what the Pres. was getting at because the context was judges. It’s a simple argument really. Pro-choicers are so concerned about the mother’s rights they completely ignore the baby's basic human right of life. Likewise, long ago some were so concerned about states rights they completely ignored the individual’s basic right to liberty. Those were dems, btw. How ironic.

I think you may be dangerously over-simplifing the two cases.

Scott v Sanford was about property. The US Constitution deemed slavery as legal as noted by the states who choose to use it. This wasn't as far as a State's Right case. It was about how the Constitution allowed for slavery. The case is simple, Scott was property when living in the South according to the State Law and allowed by the US Constitution. The ruling was a strict interpretation of the Constitution. Any other ruling would have been "activist judges" like in ideaology.

The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do thisif it is beyond the powers conferred on the Federal Governmentit will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.

[Layman]

This is funny for a couple reasons.

1) Dred Scot was 150 years ago... not years ago like say... Roe v Wade.

2) Dred Scot was actually following the Constitution. The Constitution did allow for slavery to exist... it was a state issue. It wasn't until after the Civil War that slavery was abolished. So if Bush for or against a literal interpretation of the Constitution?

3) Why in the world bring up Dred Scot? Is that the best he has? Is this what he thinks will make us sleep better at night? I certainly hope this wasn't a Freudian Slip of things to come.

You thought the Patriot Act was bad... well, we just brought back slavery!

I think Bush should lose merely on his mentioning of Dred Scot. I mean, what was he thinking?

Actually, the President's point about Dred Scott being judicial activism was excellent. The Dred Scott opinion has long been criticized by conservative scholars as an example of judicial activism. Robert Bork savaged it as judicial activism in his influential, The Tempting of America. According to Bork, "in Dred Scott v. Sanford, the politics and morality of the Justices combined to produce the worst constitutional decision of the nineteenth century." Id., at 28. Justice Scalia said that “the Court was covered with dishonour and deprived of legitimacy” by the Dred Scott decision.

The problem with Dred Scott was not just that the judges said slavery was constitutional, but that they -- on the dubious basis of property rights -- prevented Northern States and the Federal Government from outlawing the practice! Dred Scott (really named Sam) was an escaped slave who had made his way to a territory where Congress had forbade slavery. Unfortunately for him, the Supreme Court was dominated by Southerners who were sympathetic to the politics of their home and the institution of slavery. They resented the Missouri compromise, by which Congress outlawed slavery in the territories of the United States. When Mrs. Emerson brought her slave, Dred Scott, into a free territory the slave sued for his freedom in the Missouri courts. The Missouri courts initially agreed with Scott, but were overturned by the Missouri Supreme Court. The case then ended up in federal court. The Supreme Court declared that slaves were property and therefore the Congress could not outlaw slavery in the territories.

Their ruling that Congress could not outlaw slavery in territories because of property rights was judicial activism at its worst. The reasoning was erroneous and the conclusion heinous.

It may well have been the case that the federal government could not then have freed slaves in states where the law allowed slavery without committing a taking of property for which the fifth amendment to the Constitution would have required compensation. But that is a far different matter from saying that the Constitution requires the federal government or a state government to permit and protect slavery in areas under its control. The definition of what is or is not property would seem, at least as an original matter, a question for legislatures.

Bork, The Tempting of America, pages 30-31.

Chief Justice William Rehnquist also was critical of the opinion in his well-accepted The Supreme Court, How It Was, How It Is:

The opinion is based almost entirely on the sense of the unfairness to southerners of preventing them from bringing with them their peculiar institution when northerners were allowed to bring property of all descriptions. But a sense that a law is unfair, however deeply felt, ought not to be itself a ground for declaring an act of Congress void.

Id., page 145.

So I think the President is on firm ground when he uses the Dred Scott case as an example of just the kind of decision he would avoid by appointing strict constructionists. In this he agrees with the dissenting Justices of that opinion:

Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean.

Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).

The President is correct that Dred Scott was the result of judicial activism elevating their personal views of personal property over the Constitution itself.